Reserved on : 25.07.2025 Delivered on : 04.09.2025

IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

Writ Petition (M/S) No. 1338 of 2011

Smt. Asha Devi ......Petitioner

Vs.

Marwari Panchayati Dharamshala …..Respondent

Presence

Mr. Pankaj Miglani, learned counsel for the Petitioner.

Mr. Siddhartha Singh, learned counsel for the Respondent.

Hon’ble Ashish Naithani, J.

The Respondent, Marwari Panchayati Dharamshala, instituted Civil

Suit No. 70 of 1990 before the Court of Civil Judge (Senior Division), Haridwar, alleging that the Petitioner, Smt. Asha Devi, was a licensee in

respect of a portion of the Dharamshala property.

2. The Petitioner contested the suit and filed her written statement. After recording evidence and hearing the parties, the learned Civil Judge dismissed the suit by judgment and decree dated 25.02.2002, holding inter alia against the Respondent on Issue Nos. 2 and 4 relating to ownership and management of

the property.

3. Aggrieved, the Respondent preferred Civil Appeal No. 19 of 2002 before the District Judge, Haridwar. The appeal was heard and decided by the Additional District Judge, VI, Haridwar, who dismissed the appeal by

judgment and decree dated 19.04.2011.

4. While dismissing the appeal, the lower appellate court reversed the trial court’s findings on Issue Nos. 2 and 4, holding that the disputed property

belonged to and was managed by the Respondent.

5. The Petitioner, apprehending that such adverse findings may operate as res judicata in future proceedings, has approached this Court under Article 227 of the Constitution, seeking to set aside the findings of the lower appellate court on Issue Nos. 2 and 4.

6. Learned Counsel for the Petitioner contended that although the lower appellate court dismissed the appeal filed by the Respondent, it nonetheless reversed the findings recorded by the trial court on Issue Nos. 2 and 4, which related to ownership and management of the disputed property. It is urged that the decree of dismissal was already in favour of the Petitioner, and therefore, there was no occasion for the appellate court to have recorded contrary findings on such issues.

7. It was further submitted that the findings so recorded are wholly unnecessary for the purpose of deciding the appeal, and being adverse to the Petitioner, they create a serious prejudice against her inasmuch as such findings may operate as res judicata in any subsequent proceedings between the parties. The Petitioner, despite having succeeded in the appeal, is thus placed in a disadvantageous position without any fault of her own.

8. It was also contended that there is no statutory remedy available to the Petitioner to question the correctness of the adverse findings, as no appeal lies against a decree which has been passed in her favour. In the absence of any alternative efficacious remedy, the Petitioner is compelled to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to prevent miscarriage of justice.

9. Learned Counsel lastly urged that the findings recorded by the lower appellate court are contrary to the material on record and bad in law, and therefore, liable to be set aside in exercise of the extraordinary jurisdiction of this Court.

10. Learned Counsel appearing for the Respondent raised a preliminary objection to the maintainability of the writ petition. It was submitted that the Respondent itself had earlier preferred Second Appeal No. 67 of 2011 before this Court, challenging the judgment and decree dated 19.04.2011, and in that appeal, the Petitioner herein had also filed cross-objections, which were duly taken on record by order dated 21.08.2014. The said Second Appeal, however, was subsequently withdrawn by the Respondent on 20.05.2019.

11. On the strength of the above, it was contended that the present petition amounts to a collateral challenge to the very same findings, and once the statutory remedy of second appeal has been withdrawn, the matter must be treated as having attained fin